by Mark A. Cobb
On July 1, most of the 2013 Georgia legislative changes take effect including a very crucial amendment to Georgia’s lien laws.
Earlier, this year, our state legislature approved and our Governor signed in to law, an amendment to the Georgia Mechanics and Materialmen’s Lien Statutes which allows lien claimants the right to include all of their contract costs in their lien amount. Thus, as of today, it is clearer that the law allows lien claimants to include such amounts as pre-judgment interest, general condition costs, mobilization, de-mobilization, and profits in the amount they claim in the form of a lien. Specifically, Part 3 of Article 8 of Chapter 14 of Title 44 of the Official Code of Georgia Annotated, relating to liens of mechanics and materialmen, was amended by revising Code Section 44-14-361, relating to creation of liens and property to which lien attaches. The following is the revised O.C.G.A. Section 44-14-361 (the changes to the current statute are indicated underlined) which takes effect today:
(a) The following persons shall each have a special lien on the real estate, factories, railroads, or other property for which they furnish labor, services, or materials:
(1) All mechanics of every sort who have taken no personal security for work done and material furnished in building, repairing, or improving any real estate of their employers;
(2) All contractors, all subcontractors and all materialmen furnishing material to subcontractors, and all laborers furnishing labor to subcontractors, materialmen, and persons furnishing material for the improvement of real estate;
(3) All registered architects furnishing plans, drawings, designs, or other architectural services on or with respect to any real estate;
(4) All registered foresters performing or furnishing services on or with respect to any real estate;
(5) All registered land surveyors and registered professional engineers performing or furnishing services on or with respect to any real estate;
(6) All contractors, all subcontractors and materialmen furnishing material to subcontractors, and all laborers furnishing labor for subcontractors for building factories, furnishing material for factories, or furnishing machinery for factories;
(7) All machinists and manufacturers of machinery, including corporations engaged in such business, who may furnish or put up any mill or other machinery in any county or who may repair the same;
(8) All contractors to build railroads; and
(9) All suppliers furnishing rental tools, appliances, machinery, or equipment for the improvement of real estate.
(b) Each special lien specified in subsection (a) of this Code section may attach to the real estate of the owner for which the labor, services, or materials are furnished if they are
furnished at the instance of the owner, contractor, or some other person acting for the owner or contractor and shall include the value of work done and materials furnished in any easement or public right of way adjoining said real estate if the work done or materials furnished in the easement or public right of way is for the benefit of said real estate and is within the scope of the owner’s contract for improvements to said real estate.
(c) Each special lien specified in subsection (a) of this Code section shall include the amount due and owing the lien claimant under the terms of its express or implied contract, subcontract, or purchase order subject to subsection (e) of Code Section 44-14-361.1.
(d) Each special lien specified in subsection (a) of this Code section shall include interest on the principal amount due in accordance with Code Section 7-4-2 or 7-4-16.
In addition to this important update to Georgia’s lien laws, most of Georgia’s new statutes also take effect today including the amendment to Georgia’s constitution to allow the state to authorize new charter schools over the objection of local school boards, and a $2,000 increase in the amount of tax-free income married couples filing jointly may claim as an exemption.
by Mark A. Cobb
The Georgia Mechanics and Materialmen’s Lien Law Statutes (O.C.G.A. Section 44-14-360 et seq.) govern all aspects of filing construction liens in Georgia, and our construction lawyers have filed hundreds or thousands of liens on behalf of contractors, specialty subcontractors and material suppliers in virtually every county in Georgia!
Disclaimer: This blog post and its links (just like all of our blog posts) try to offer SOME of information regarding some of the most common questions which we get. Unfortunately, we cannot offer legal advice through a blog article, and you should not file a lien in Georgia based upon the information provided through our blog and website. Thus, we strongly encourage any potential lien claimant to seek competent legal advice from an experienced Georgia lien attorney in order protect your rights–we can provide you some useful guidelines in our blog articles, but we cannot cover all of the exceptions, loopholes, alternate solutions and pitfalls of filing construction liens in Georgia. When it comes to Georgia’s lien requirements and surety bond claims, there is simply no substitute for experience and Mark Cobb has over 20 years for experience! To learn more about Mark Cobb, please click here > >
Strict Compliance with every aspect of Georgia’s Lien Laws: Because materialmen’s liens essentially make a third party (such as the property owner) responsible for making sure that you get paid, Georgia courts have consistently required that lien claimants strictly comply with every aspect of the lien laws. To better understand Georgia’s strict compliance requirements, please click here > >
Preliminary Requirements for Filing a Lien in Georgia: Those in privity of contract with either the owner or the general contractor do not have any preliminary notice requirements in Georgia; however, if you are a third tier sub-subcontractor or material supplier then you probably need to send a Notice to Owner and a Notice to Contractor (sometimes called Notice of Furnishing, NTO, or NTC) within the first 30 days you began working on the project. To learn more about NTOs, please click here > >
Deadline for Filing a Lien in Georgia: All types of construction liens must be filed within 90 days of the last day in which they were physically on the job site (NOT invoice date!); if you signed a lien waiver, then your deadline to file a lien may be shortened to the 60th day from the date of the lien waiver. To read more about this, please click here > >
Georgia Lien Form: Although there is no magic bullet form for filing liens in Georgia, our legislature has mandated certain requirements which must be contained in the lien including some specific language and some particular font sizes. To see a copy of the Official Code of Georgia Section 44-14-361.1 with specific language requirements for liens, please click here > >
Costs & Jurisdiction for Filing a Lien in Georgia: Lien Claimants must file their Georgia liens in the county where the construction project was located. Liens are filed with the Clerk of the Superior Court and the filing fees are, currently, $5.00 for the first page and $2.00 for each additional page. To see a list of addresses, telephone numbers and websites for the clerk of court of each Georgia county, please click here > >
Statutory Notice of Filing of Lien: No later than 2 days after a claim of lien is filed with the clerk of court, lien claimant must send each owner of the real estate which you liened a copy of your lien.
Perfecting Your Lien: Unless the owner of the real estate where the lien is place files a proper Notice of Contest of Lien, a Georgia materialman’s lien will expire one year from date of the filing of the lien unless a law suit is filed against the entity with whom you contacted (if you are a subcontractor, this would likely be the general contractor; if you are a material supplier, then it might be either a subcontractor or the prime contractor. To read more about this, please click here > >
Georgia Notice of Filing of Action: Within 30 days of filing a law suit to perfect a construction lien, the lien claimant must also file a Notice of Filing of Action with the clerk of court in the county where the lien was filed. To read more about Notices of Filing of Action, please click here > >
Georgia Foreclosure of Lien Action: Sometimes, it is possible to combine the foreclosure of the lien action with the lawsuit a lien claimant filed within one year of the filing of the lien; however, jurisdictional or strategic differences may prevent this; if so, then after the “first” lawsuit is filed, and if the lien claimant prevails in that lawsuit, then Georgia’s lien laws require a second lawsuit to begin the foreclosure process (against the owner of the real estate). To read more about this process, please click here > >
Only Georgia Lawyers Can File Materialmen’s Liens in Georgia: As you can see from this very basic overview, filing a proper materialmen’s lien in Georgia is very technical and–from the first day you worked until the end of the lien foreclosure action–Georgia Claims of Liens must be in strict compliance with ALL of the requirements. Furthermore, its importanta for a potential lien claimants to understand that lien filing services are prohibited from filing construction liens in Georgia–only lawyers admitted to practice in Georgia are allowed to file materialmen’s liens in the lien records.
We hope that this overview on how to file a supplier lien or subcontractor lien on a Georgia job site has helped to provide you with useful and basic information regarding the lien process in Georgia. If you have worked on a Georgia construction project and you have not received payment, please contact an experienced Georgia construction attorney today. The lien and bond lawyers at the Cobb Law Group and help you, please telephone us at 1-866-960-9539 or email us today. We can help you prepare and file your lien anywhere in the State of Georgia!
by Mark A. Cobb
(UPDATED MAY 9, 2013) GOVERNOR SIGNED HB 434 INTO LAW; click here for more information!
We love sharing good news about pending changes to Georgia’s lien laws! A couple of weeks ago, we published a blog post about Georgia 2013 HB 434 which allows Georgia lien claimants to include both general condition costs and accrued interest as a part of their lien claims. At the time our blog entry was published, the Georgia House of Representatives had passed the amendment and the bill was being forwarded to the Senate. Our long-time friend, Senator Jack Murphy sponsored the bill in the Georgia Senate, and, we are pleased to report, the bill passed the Senate unanimously. Consequently, HB 434 has been forwarded to Governor Deal for consideration. Thank you Georgia representatives and senators!
This vital legislation greatly impacts Georgia’s subcontractors and material suppliers. In a recent court decision, a judge ruled that a lien claimant was not allowed to include the whole value of its contract in its lien; thus, for example, the lien claimant was potentially prohibited from included general condition costs, mobilization and demobilization costs, etc. The proposed legislation of Georgia HB 434 attempts to rectify this potentially detrimental court holding by specifically amending Georgia’s lien statute to permit a claim of lien to include the amount due and owing the lien claimant under the terms of an express or implied contract, subcontract, or purchase order as well as interest on the past due balance.
To read the proposed change to Georgia’s Mechanics and Materialmen’s Lien Act found at O.C.G.A. Section 44-14-361, please click here.
The construction attorneys at the Cobb Law Group want to keep you up-to-date on all the laws and cases which affect your rights. Please rely on us with any questions you may have regarding Georgia’s lien laws and payment bond claims. Contact us here.
by Mark A. Cobb
Admittedly, the Mechanics and Materialmen’s Lien Act gives Georgia’s contractors, subcontractors and material suppliers a giant step towards getting the money they are owed. And, a giant step is a wonderful gift, but there are other steps which must be undertaken if the lien claimant wishes to enforce its lien. As we’ve discussed before each and every aspect of Georgia’s Lien Law must be strictly construed. In other words, every materialmen’s lien claimant must satisfy every requirement of Georgia’s statutes in order to have a valid lien.
Assuming that a claimant holds a valid lien against the real estate where the work was performed or where the claimant’s materials were used, the lien claimant has a “good start” but he or she needs to continue to meet the additional requirements of Georgia’s lien laws in order to preserve, perfect and enforce its construction lien against the real property owner.
As with virtually every aspect of law, there are always exceptions, but generally, Georgia lien foreclosure laws require a lien claimant to complete two distinct steps before actually foreclosing against the lien.
STEP ONE: FILE A LAWSUIT AGAINST THE PARTY WHO OWES YOU MONEY. In most situations, a property owner has contracted with the general contractor for the construction of his project. The general contractor, in turn, hires specialty subcontractors and material suppliers to work on and supply products to the project. If one of the specialty subcontractors or materialmen are not paid for their work, they may be entitled to file a materialmen’s lien against the real estate where the project is located. In a situation such as this, the lien claimant is usually barred from immediately foreclosing his lien or making the project owner financially responsible for the debt; instead, he must fulfill his obligation and first seek recovery from the person or entity with whom he contracted (e.g., the specialty contractor would have to sue the general contractor before commencing a proceeding against his lien).
Thus, in order to “perfect” its materialmen’s lien, the Georgia lien claimant must file suit against the party with whom they contracted within one (1) year of the date that the lien claimant’s materialmen’s lien was filed.
In addition, within thirty (30) days of filing the lawsuit and pursuant to O.C.G.A. § 44-14-361.1, the lien claimant must file a Notice of Filing of Action for Claim on Mechanics and Materialmen’s Liens with the clerk of court in the county where the lien claimant’s lien was originally filed.
Upon completion of the proper filing of the lawsuit and the subsequent Notice of Action for Claim on Mechanics and Materialmen’s Liens, the lien claimant’s lien has been duly “perfected”. And, assuming that the lien claimant prevails in its lawsuit to recover damages from the defendant (in our example, the general contractor), then the Georgia lien claimant must complete a second step prior to foreclosing upon its materialmen’s lien.
STEP TWO: FILE A LAWSUIT AGAINST THE OWNER OF THE REAL ESTATE AGAINST WHICH THE CLAIM OF LIEN WAS FILED: Although there are exceptions (bankruptcy of the general contractor, for example, may alleviate the need to file the first lawsuit), the typical, second step to Georgia lien foreclosure is a lawsuit against the real property where your work or materials were utilized to request that the court place a “special lien” against the real estate. Assuming that the lien claimant prevails in this second lawsuit and a special lien is granted to the lien claimant, the lien claimant may take the steps necessary to foreclose the lien and, hopefully, recover the money it is owed.
As you can tell, there are many pitfalls and dangers to attempting to enforce liens and foreclose real estate on your own. Failure to strictly comply with Georgia’s lien requirements will invalidate a lien, thus it is highly advisable to engage a qualified construction lawyer with experience filing and enforcing liens. If your business is an official business entity (for example, a corporation, limited liability company, etc.) then you are required to engage a Georgia attorney as Georgia courts have held that an official business entity cannot “represent themselves” as can individuals. Furthermore, making the proper claims, meeting the various statute of limitations and understanding civil procedure as your cases proceed, and presenting damages really need an experienced construction lien lawyer to perfect and enforce your materialmen lien rights.
If you have any questions regarding filing lien, perfecting liens, enforcing liens or other Georgia construction law questions, please feel free to call us at (770) 886-5890 ext. 1 or email us today!
by Mark A. Cobb
Since our law firm has a significant core practice area in which we file and perfect mechanics & materialmen’s liens and payment bond claims throughout Georgia, we address prospective clients’ lien questions almost everyday. We are surprised how many contractors and suppliers’ knowledge of Georgia’s construction lien requirements is based upon obsolete lien laws. In 2009, the Georgia legislature approved several significant changes to the Georgia’s Mechanics and Materialmen’s Lien Act. Since we continue to get so many questions regarding these changes, we thought a brief review of the changes made to Georgia’s lien laws in 2009 would be useful to many potential Georgia lien claimants:
SOME OF THE SIGNIFICANT 2009 GEORGIA LIEN LAW CHANGES:
- Date Georgia’s 2009 Lien Law Revisions Went Into Effect: March 31, 2009;
- Notice to Contractor/Notice to Owner: These notices to contractors (sometimes called Notices of Furnishing) must be sent to the owner and the contractor by registered mail, certified mail or statutory overnight delivery at the addresses specified in the Notice of Commencement (the former statutes did not specify the method these notices were to be given);
- Deadline for Filing a Claim of Lien: A Claim of Lien must be filed within 90 days after the lien claimant actually worked on the project or supplied materials to the project (the former requirement was more ambiguous requiring that a claim of lien be filed within three months from the last day worked); it is very important to note that Georgia’s new lien waiver forms may, for all practical purposes, shorten this deadline to sixty days from the date the lien waiver was signed;
- Deadline for Sending a Copy of the Lien to Owner & Contractor: A lien claimant is required to send a copy of the lien to the owner (and, if a Notice of Commencement was filed, to the general contractor) within two business days after the claim of lien is filed (the former lien requirement was ambiguous as to the deadline for sending a copy of the lien to the owner);
- Deadline for Perfecting or Enforcing a Claim of Lien: A lien claimant must file a legal action against the party with whom the lien claimant contracted within 365 days of the date the lien was filed (the former requirement was more ambiguous requiring that a legal action be filed within one year of the last day worked by the lien claimant); it is important to note that this deadline may be expedited if the property owner or the general contractor files a Notice of Contest of Lien (see below);
- What is a Legal Action (for purposes of lien enforcement): Georgia’s lien statute specifies that the lien claimant’s obligation to file a “legal action” may include filing a lawsuit, filing a proof of claim in a bankruptcy proceeding, or filing a demand for arbitration action (the former statute did not include arbitration as a legal action which would perfect the lien);
- Deadline for Filing a Notice of Action: The lien claimant must record its Notice of Filing of Action For Claim on Mechanics and Materialmen’s Liens within 30 days from the date it began a legal action to enforce its lien rights (the former statutes required that this notice be filed within 14 days);
- Notice of Lien Discharge Bond: If an owner, contractor or other interested party files a bond to discharge a materialmen’s lien, then, within seven days of filing a bond to discharge a lien, the party filing the bond must give the lien claimant notice of the filing of the bond (the former lien provisions did not require that notice be given to the lien claimant);
- Notice of Contest of Lien: This is an entirely new section which allows property owners and contractors the ability to accelerate the lien claimant’s deadline to file a legal action to enforce its lien claim; it is important to note that a properly filed lien contest will shorten the lien claimant’s deadline to file a legal action to enforce its lien to 60 days from its receipt of the notice;
- New Georgia Lien Waiver and Lien Release Forms: The revisions introduced new interim lien waiver forms and new final lien waiver forms as the only acceptable lien waiver forms to be used in Georgia; some of the material changes to the new forms include (i) specific language requirements; (ii) requirements that capital letters and a 12-point be used, (iii) the new forms release bond rights as well as lien rights, and, perhaps most importantly, (iv) sixty days after the lien waivers are signed, conditional lien waivers become unconditional lien waivers;
- New Affidavit of Nonpayment Form: Similarly, the statutory form for the Affidavit of Nonpayment has been changed and the older form should not be used any longer; changes to this form include (i) required formatting to include capital letters and font size, (ii) specific language required, (iii) the deadline for filing an Affidavit of Nonpayment has been extended from 30 days to within 60 days, and (iv) if an Affidavit of Nonpayment is filed, then within seven days of filing, a copy of the Notice of Nonpayment must be sent to the property owner (and if a Notice of Commencement had been filed then notice must also be sent to the general contractor);
- New Claim of Lien Form: The Georgia Claim of Lien form was revised to include (i) statutory required language, (ii) specific language printed in 12 point bold font, and (iii) clarification that the date when the claim became due is that last day in which a contractor or subcontractor actually worked on the real estate or a material supplier provided materials for use on the project.
Please keep in mind that this article is a brief summary of the significant changes to the lien laws made by the Georgia legislature; there are additional changes which have not been covered in this article; similarly, this article does not include matters which did not change (but with which lien claimants must strictly comply); thus, if you have a potential construction lien claim or if you are an owner or a general contractor trying to address a claim lien against your project, then you should contact an experienced Georgia construction law attorney who can help you understand, evaluate and file the claim of lien. Contact the Cobb Law Group to help you with your lien claim today!
We invite you to leave a comment below and tell us how the 2009 changes in the Georgia Lien Laws have affected you or your business.
Assuming you have a valid Georgia mechanic or materialmen’s lien, the lien is good for one year from the date the lien is filed. In order to extend the lien beyond this expiration date, however, Georgia’s lien laws require that the Lien Claimant file a lawsuit against the party with whom they contracted before the lien expires. In addition, the lien claimant must file (and serve) a Notice of Filing of Action for Claim on Mechanics and Materialmen’s Liens. Fulfilling all of the statutory requirements before the statute of limitations expires is referred to as “perfecting your lien”.
Due to the complexity of complying with Georgia’s Lien Laws and the inherent difficulties of self-representation, it is very important to have an attorney prepare this suit and meet the other statutory requirements on your behalf.
We occasionally get telephone calls, however, from subcontractors or laborers who filed their own liens and call us to help them perfect their liens; unfortunately, there are situations where the costs to enforce your lien rights may not justify the legal expenses. In those instances, Georgia offers a possible avenue for these smaller claims–Magistrate Court.
Georgia Magistrate Court is our state’s version of small claims court or the people’s court. Although the Magistrate Court is usually more dignified than the shows on television, it really is a forum for citizens of Georgia who are owed money but aren’t owned enough money to justify the expense and the time of hiring legal counsel. Thus, you may be able to file and prosecute an action in Magistrate Court pro se (that is, representing yourself). Magistrate Court currently has a jurisdictional limit of $15,000 which means you can only file your lawsuit in Magistrate Court if the amount you are owed is less than $15,000; consequently, the Cobb Law Group does not do much work in Magistrate Court, but you can find out more information by clicking here:
If you choose to pursue your claim in Magistrate Court, you are still required to file your Notice of Filing of Action for Claim on Mechanics and Materialmen’s Liens, and we strongly suggest that you hire a Georgia Construction law firm to prepare this document on your behalf as it must meet statutory requirements and will require information relating to the current owner’s of the real estate which may be difficult to locate.
If you have any experience which you wish to share regarding your experience with perfecting liens or filing a lawsuit in one of Georgia’s Magistrate Courts, please leave a comment below.
This is a general information article and should not be construed as legal advice or a legal opinion. The content above has been edited for conciseness and additional relevant points are omitted for space constraints. Readers are encouraged to seek counsel from a construction lawyer for advice on a particular circumstance.
You probably know that payments bonds are a great way to increase the likelihood of getting paid for the work you perform or the materials you supply on Federal, state and local government projects in Georgia. But, did you know that private construction projects can also have payment bonds?
Public Works Projects and Payment Bonds: Since public policy prohibits a supplier or a subcontractor from filing and foreclosing a claim of lien against a public project, the federal and state governments have established a bonding procedure to protect the interests of construction professionals who are not paid for their work and supplies. All construction contracts in excess of $100,000 for any public works located in Georgia (this includes Federal public works projects as well as State of Georgia and local municipality public works projects) must be covered by a payment bond. Payment bonds may also be issued for smaller public works projects. Because these federal, state and local construction projects are governed by statutes, payment bond claims against government projects are (largely) governed by statutes. Federal projects, for example, are governed by The Miller Act. The State of Georgia has enacted two separate code sections relating to payment bonds: one covers construction projects owned by the State of Georgia, and one covers construction projects owned by counties and local municipalities in Georgia (collectively, these are referred to as the Little Miller Act because it mirrors its federal counterpart). For more information, on public works payment bonds, please click here.
Private Construction Projects and Payment Bonds: Government public works projects require payment bonds by statute, but there is no requirement that privately-owned construction projects must be covered by a payment bond. Nonetheless, an owner or a general contractor may also include a payment bond. If so, that is probably great news for any sub-contractor or supplier working in Georgia! However, since payment bonds are not required by statute, they are not as regulated by statute as the public works payment bonds. Instead, they tend to be governed by contract; specifically, they are governed by the contract between the surety (the insurance company providing the payment bond, the obligee (the person requiring the bond), and the obligor (the person performing the construction contract). What does this mean? It means you should obtain a copy of the payment bond as soon as possible and read it! It will set out the method(s) of making a claim as well as the deadlines.
Payment Bonds and Mechanics and Materialmen’s Liens on Private Projects: Even if the private project on which you are working or supplying materials in Georgia is covered by a payment bond, then you are still allowed to file a claim of lien if you are not paid. This is a boon to sub-contractors and suppliers as it gives them multiple options for collecting the money they are owed.
Needless to say, payment bond claims on public works projects, payment bonds claims on private projects, and mechanics and materialmen’s lien claims each have their own requirements and deadlines. If you have provided labor or materials on a project but you haven’t received payment, please contact a construction lawyer in Georgia who can assess your claim and help you navigate the requirements and meet the deadlines to file your payment bond claim and construction liens.
This is a general information article on Georgia construction law and should not be construed as legal advice or a legal opinion. The content above has been edited for conciseness and additional relevant points are omitted for space constraints. Readers are encouraged to seek counsel from a construction lawyer for advice on a particular circumstance.
Potential clients regularly call us and ask how long a lien lasts in Georgia. As is true in most areas of law, the short answer is “it depends.”
Georgia Liens are Valid for One Year: In Georgia, a Claim of Lien is valid for one year from the date that the lien is filed. If the lien claimant files a materialmen’s lien and then doesn’t enforce its lien rights within the year, then the mechanics or materialmen’s lien will automatically expire.
How Lien Claimants Can Extend the Lien Beyond One-Year: If the lien claimant enforces its rights before the one-year anniversary of the filing of the original construction lien, then the lien will continue to be valid. How does a Georgia Lien Claimant enforce its rights? Generally speaking, the Lien Claimant must (i) file a lawsuit against the party who owes them money, and they must (ii) file a Notice of Filing of Action for Claim on Mechanics and Materialmen’s Liens (“Notice of Action”). Not only must these steps be done, but they must be done correctly and in compliance with the Georgia Mechanic’s and Materialmen’s Lien Act. In order to do so, you will need a Georgia construction lawyer to help you meet all of the requirements. If all of the necessary steps are taken in a timely manner, then the Claim of Lien does not expire and it continues in force beyond the one year anniversary of filing the lien.
Exceptions to Filing A Lawsuit: Sometimes, a mechanic’s Lien Claimant is prohibited from filing a lawsuit against the party who owes them money–this would most likely happen if the party who owed the money filed for bankruptcy protection. This or any other scenario requires an experienced, Georgia Construction Lawyer in order to advise the Lien Claimant of the steps necessary to perfect and preserve its lien in Georgia.
How Can a Real Property Owner Shorten the Validity of a Construction Lien? Earlier, we advised that Georgia Liens are (initially) valid for one year from the date the lien was filed; if additional steps are not taken by the Lien Claimant, then the lien will expire. The real property owner may file a Contest of Lien which shortens the time the Lien Claimant has to file its collection lawsuit, file the Notice of Action, etc. from the one-year anniversary to 60 days from the date of the filing of the Contest of Lien. Of course, if the Georgia Lien Claimant meets its obligations to perfect its lien within this shortened period, then the Georgia Materialmen’s Lien survives and continues beyond the sixty day period.
Please contact the Cobb Law Group if you have any questions regarding the filing of Georgia liens, Georgia’s Construction Lien Laws, perfecting and enforcing liens in Georgia, or the expiration of liens in Georgia.
As though of you in the construction know, properly filed Claims of Liens (such as construction liens, mechanic’s liens, materialmen’s liens, suppliers liens, etc.) help contractors, subcontractors and suppliers get paid in the State of Georgia. How do Claims of Liens help you get paid?
Although this may be an over-simplification, properly filing a lien helps you obtain collateral for your debt. In other words, let’s assume that you are a material supplier on a construction project in Georgia, and let’s assume that you haven’t been paid for all of the materials which you supplied. The person who purchased the materials from you, of course, owes you for the materials. In addition, however, the real estate where the construction occurred can be “liened” for the amount of the debt. This gives the material supplier an interest in the real estate which, if the material supplier does not receive payment, he has the right to foreclose upon the lien and sell the real estate to pay his debt.
Again, this is a very simplified explanation of Georgia’s Lien Laws, but it makes sense. Throughout the United States, there are differing versions of Liens Laws, but they are all of the benefit of those who are not paid on construction process.
The theory behind Claims of Liens goes something like this: American land owners have been historically seen as the “landed gentry” which implies they have money and education and that they protect those who are less fortunate. Conversely, those working on construction projects have been historically perceived as less educated and a part of the working class. Thus, the real property owners have a duty to make sure that those working on the construction project gets paid.
In addition, it is undisputed that the materials, the labor, the equipment, the skill which those working on the construction project bring to the project have enhanced the value of the real estate, that is, the subcontractor or supplier has “improved” the project up to the value of the improvements made by the subcontractor or supplier. Imagine a marble supplier providing $500,000 worth of marble for the lobby and conference rooms of a building; the marble is installed, but the marble supplier is not paid for its marble. The office building has increased in value because it has a marble lobby and marble conference rooms so it is only equitable (or fair) that the marble supplier be permitted to file a Claim of Lien against the office building for the value of the unpaid materials. Furthermore, if the debt is not collected, then the marble supplier has the right to force the sell of the office building to recover its money.
Again, this entry is meant to be a very rudimentary explanation of Claims of Liens; Georgia’s Mechanics and Materialmen’s Lien Laws have very strict deadlines and requirements which must be strictly followed. If you have accounts receivable on a construction project anywhere in the State of Georgia, contact us to see if your claim is lienable.
When do I need to file a materialman’s lien in Georgia?
According to my telephone conversations with potential clients, this is the question of the week! If you don’t know, then let us say it clearly, all construction liens (this includes supplier liens, subcontractor liens, contractor liens, mechanic liens, and materialman liens) must be filed within 90 days from the last day in which the lien claimant actually worked on the project–this deadline is not based on invoice dates!
Well, a lot of potential lien claimants seem to know this, but they are unclear how to put this into practice, and we understand because this can be confusing. Here are some tips to help you navigate Georgia’s Lien Deadlines:
Make Sure You Calculate the 90 Day Deadline Correctly: We recently had someone contact us who assured us that there were still a few days in which a materialmen’s lien could be timely filed; as soon as we calculated the deadline ourselves, it was apparent that the deadline had already expired: Our caller made three mistakes:
- Count Days Not Months: Our caller was using months to calculate the deadline–he was counting November 22 to December 22 to January 22 to February 22 instead of counting actual days; unfortunately, Georgia liens must be filed within a 90 day deadline and this caller’s information failed to take into account December’s 31st day and January 31st day. Consequently, his right to file a mechanic’s lien in Georgia did not expire February 5, it expired a few days earlier;
- Liens Need to be Filed Within 90 Days: Furthermore, our caller thought the lien could be filed on the 90th day; in reality, the lien should be filed prior to the 90th day following the last day worked.
- Weekends and Holidays Do Not Extend Deadline: Due to the randomness of the calendar, our caller’s 90th day following the last day worked fell on a Monday; since all Georgia liens must be filed within 90 days of the last day worked, that meant his claim of lien had be filed Sunday or before. As you know, courthouses are closed on Saturday and Sunday which shortened our caller’s deadline to file a Georgia lien to Friday–87 days from the date he last worked on the project!
Practical Tip # 1: All mechanic’s and materialmen’s lien in Georgia must be filed on or before the 89th day from the last day in which the lien claimant performed services or supplied materials to the project (and neither holidays nor weekends extend this deadline.)
This week, we also had a potential lien claimant who just finished his work on a construction project in Georgia, but he had not been paid. He wanted to file a materialmen’s lien as soon as possible. And, that is his legal right. This leads us to the question, When should someone who is not receiving payment for their labor or materials on a construction project file a lien? Every situation is different–and filing mechanics’ liens should be based upon each unique circumstance–but a general rule of thumb is the soon the better. There are many, many reasons for this, but here are some of the common reasons for filing your Georgia lien sooner rather than later:
- filing a mechanic’s lien sooner may give you priority against other creditors or other lien claimants;
- filing a mechanic’s lien sooner may help you get paid sooner as there may still be retainage on the project (which might be paid to you);
- filing a mechanic’s lien sooner will prevent problems such as missing any deadlines;
- filing a mechanic’s lien sooner will give the attorney filing the construction lien time to do it in his regular course of business (no rush fees!)
- filing a mechanic’s lien sooner can lower your costs–liens can be mailed to the court, for example, rather than being sent by courier or overnighted;
- as a rule of thumb, the sooner you begin exercising your right to file a lien, the sooner, you’ll get paid.
Practical Tip # 2: Don’t wait until the last minute to file a construction lien in the State of Georgia; instead, file it as soon as you realize that you may not get paid.
The Cobb Law Group focuses its practice on filing and perfecting every type of construction lien throughout the entire state. If you have any questions, please contact us. Also, please leave comments about your experiences with meeting lien filing deadlines.